Moore v. Dretke , 129 F. App'x 877 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 31, 2005
Charles R. Fulbruge III
Clerk
No. 03-41326
Summary Calendar
GREGORY LAWRENCE MOORE,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:00-CV-758
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Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Gregory Lawrence Moore, Texas prisoner # 799979, filed a
petition under 28 U.S.C. § 2254 to attack his 1998 conviction and
20-year sentence for failure to appear. The district court
granted relief on Moore’s claim that his appellate counsel had
been ineffective for failing to timely notify Moore of the
outcome of his appeal and the right to proceed further by filing
a state petition for discretionary review (“PDR”). The district
court denied relief on Moore’s remaining claims.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-41326
-2-
On the respondent’s appeal, this court vacated the judgment
of the district court and concluded that the state habeas court’s
denial of relief on Moore’s claim of ineffective assistance of
appellate counsel “was not contrary to or an unreasonable
application of clearly established federal law as determined by
the Supreme Court of the United States.” Moore v. Cockrell,
313 F.3d 880, 881 (5th Cir. 2000). This court remanded for
further consideration in light of the deferential standard under
the Antiterrorism and Effective Death Penalty Act (AEDPA).
Id. at 882.
On remand, the district court denied relief. Moore filed a
timely notice of appeal and applied for a certificate of
appealability (COA). The district court granted COA on three
issues raised for the first time in Moore’s COA application:
1) whether Moore had a constitutional right to file a state PDR;
2) who has the duty to timely inform a defendant of the outcome
of his state direct appeal; and 3) whether there is a conflict
between the Texas Rules of Appellate Procedure, the Federal Rules
of Appellate Procedure, and this court’s decision in Moore.
In his brief, Moore attacks the rationale of the decision in
Moore, arguing the three issues on which COA was granted. The
respondent contends that this court should not consider Moore’s
arguments because they were raised for the first time in his COA
application in the district court.
In Roberts v. Cockrell, 319 F.3d 690, 695 (5th Cir. 2003),
we stated that “[w]e generally will not consider a claim raised
for the first time in a COA application.” We noted that the
No. 03-41326
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petitioner, who raised an equitable tolling argument for the
first time in his COA application in the district court, “could
and should” have raised the issue earlier. See id. Here, Moore
had the opportunity to raise all of the issues on which COA was
granted in his objections to the magistrate judge’s report, which
recommended that his 28 U.S.C. § 2254 petition be denied based on
the decision in Moore. Because Moore “could and should” have
raised the issues prior to his COA application in the district
court, this court will not consider them. See id. Accordingly,
the judgment of the district court is AFFIRMED. The respondent’s
motion to vacate the COA granted by the district court and to
dismiss the appeal is DENIED.
After briefs were filed, Moore’s appointed counsel, John
Bennett, moved to withdraw. The motion is GRANTED. See 5th Cir.
Plan Under the Criminal Justice Act (“CJA”), § 5(B). David P.
O’Neil is hereby appointed as his attorney. Moore’s motion is
GRANTED. See 18 U.S.C. § 3006A(c); Fifth Circuit Plan under the
CJA, § 3.